GENDER DISCRIMINATION

Photo by: Hao Wang

Gender or sex discrimination in the United States has a long tradition,
partaking of a much wider phenomenon of discrimination against women that
is both ancient and global. Only recently have social movements and laws
in the industrialized countries recognized the right of women to own
property, vote, marry whom they choose, limit the number of children they
will bear, or have equal opportunities in the workplace.

Yet in many parts of the world, discrimination based on gender is still
deeply entrenched; worldwide, women tend to have less access to education,
training,
and opportunities for
employment
than men, and women are often given no meaningful legal protections
against serious injury and murder by spouses and strangers. Worldwide, a
comprehensive 1989 survey of women concluded that in most countries women
were "poor, pregnant, and powerless." In many countries,
women are still regarded as the property of men, are denied access to
birth control information, are not allowed to vote, and are prohibited
from working with men. In patriarchal societies, being born female can be
fatal, as male children are greatly preferred. In many countries, young
girls (and some boys) are sold by their families into the prostitution
trade. During the 1990s, the problem of trafficking in women and girls for
forced labor, domestic servitude, or sexual exploitation had affected an
estimated one to two million women and girls. The economic collapse in
Asia (1997-98) exacerbated such trends.

Many countries have subscribed to the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), adopted by the
United Nations
General Assembly in 1979. Article 2 of the Convention provides that
states agree to pursue a policy of eliminating discrimination against
women and take appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs, and practices that constitute
discrimination against women. Yet in subscribing to the Convention, many
countries note that they will not adhere to Article 2's direction.
The United States was active in the drafting of CEDAW, but the Senate has
not formally considered ratifying the treaty since 1994. As of 1998, 161
countries have ratified CEDAW, including most nations of the
European Union.

In the United States, even without ratification of CEDAW, a number of
statutes and decisions since World War II have provided women with
protections against various forms of discrimination, particularly in the
workplace. Historically, the common law of most states allowed employers
to hire and fire at will unless their right to do so was limited by
contract
or statute. Under this system, white men dominated the labor market. It
was also common for states to legislatively limit the kinds of work that
women could do. The usual justification for such laws was the protection
of women, yet the prohibited jobs typically paid considerably more.

During World War II, however, the contribution of women in industry to the
war effort became obvious,
and it was more and more difficult to maintain arguments based on
protection. In 1964, during debate on Title VII of the Civil Rights Act, a
southern legislator and civil rights opponent, Judge Howard Smith, offered
to amend Title VII by including sex as a prohibited basis of
discrimination in hiring, firing, or working conditions. His hope was to
weaken the bill, which was primarily directed at problems of racial
inequality, but the bill passed anyway.

Title VII prohibitions on sex discrimination have given significant help
to women seeking equality in the workplace. Yet 35 years after passage of
Title VII, nearly 80 percent of female workers were in
"women's work," as secretaries, administrative
support workers, and salesclerks. In 1993 only 19 of the 4,000 Fortune 500
officers and directors were women, and more than half the Fortune 500
boards had no women as members. A 1989
New York Times
poll of women found that job discrimination was the most important
problem facing women; by 1999, the number one concern among 63 million
working women in the United States was the persistent male-female wage
gap. As of 1997 women were earning about 75 cents for every $1 that men
made. This gap has narrowed slightly since 1980, but may be as much
attributable to lower earnings by men rather than progress by women,
according to the Institute for Women's Policy Research in
Washington.

Despite significant gains among women in U.S. business and political life
by 1990,80 to 90 percent of women said they suffered from job
discrimination and unequal pay, and gender discrimination charges filed
with the Equal Employment Opportunity Commission (EEOC) rose nearly 25
percent in the 1980s. When Congress revisited civil rights legislation in
1991, its amendments to the 1964 Civil Rights Act included the
establishment of a Glass Ceiling Commission to investigate barriers to
female and minority advancement in the workplace.

What follows is a discussion of the specific rights created by U.S.
federal and state laws relating to sex discrimination in the workplace.

Title VII of the Civil Rights Act of 1964 is the primary federal law
establishing gender equality in the workplace. The other laws are the
Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1973 (which
says that sex discrimination includes bias against women because of
pregnancy) and Executive Order 11246. In 1994 Congress enacted the
Violence Against Women Act. Its primary objective was to deal with federal
criminal offenses for violence against women. It has recently been
extended, however, in two federal district court cases to also apply in
the employment setting to individual supervisors.

Title VII and the Equal Pay Act were established in accordance with
Congress's powers under the Commerce Clause of the U.S.
Constitution; employment discrimination was deemed by Congress to
sufficiently affect interstate commerce, and the exercise of federal power
in this area has been upheld by the courts as constitutional.

EOUAL PAY ACT.

The Equal Pay Act of 1963 forbids only sex discrimination regarding pay,
directing that men and women doing equal work are to receive equal pay.
While the terms of the legislation are genderneutral, and men could
conceivably be plaintiffs, the typical plaintiff is a woman, and she must
show the court that she has received lower pay than a male employee who
performed substantially the same work for the same employer.
"Substantial equivalence" can be shown where the two jobs
involve (1) equal effort, (2) equal skill, (3) equal responsibility, and
(4) similar working conditions. Once these elements are established by the
plaintiff, the defendant may show that the pay disparity is justified by
(1) seniority, (2) merit, (3) quality or quantity of production, and (4)
any factor other than sex. For any of the first three defenses, employers
cannot rely on subjective estimates but must offer fairly precise criteria
that are equally applied and communicated to all employees. The fourth
defense is a catch-all category, which may include practices such as
paying more for certain less-desirable shifts.

Remedies for successful claimants under the Equal Pay Act include recovery
of back pay. Plaintiffs may also receive an equal amount as liquidated
damages. Unlike Title VII actions, claimants need not pursue
administrative remedies through the EEOC, even though the EEOC enforces
the Equal Pay Act.

EXECUTIVE ORDER 11246.

Under Executive Order 11246, first signed into law by President Lyndon B.
Johnson in 1965, employers who contract to furnish the federal government
with goods and services of $10,000 or more must agree not to discriminate
against employees on the basis of race, color, religion, gender, or
national origin. For the smallest government contracts, employers must
agree that they will not discriminate in soliciting, hiring, training, and
retaining employees, and will post notices that it is an equal opportunity
employer. These notices must be posted in conspicuous places. Small
contractors must also agree to certain record-keeping and inspection
requirements.

If a contractor has 50 or more employees and a nonconstruction contract of
$50,000 or more, the contractor must develop an affirmative action plan
within 120 days of the beginning of the contract. Many of the
"voluntary" affirmative action programs
(those plans not mandated by a court order after pervasive patterns of
discriminatory conduct are found) arise from the mandate of Executive
Order 11246, which has remained in force through the successive
presidencies of Presidents Nixon, Ford, Carter, Reagan, Bush, and Clinton.
The listed strategies for complying with Executive Order 11246 include a
workplace assessment in which the employer lists how many women are in
each of seven categories, from unskilled workers to managers. Employers
must compare the percentage of women in these positions with the
percentage of such qualified employees available in the appropriate
geographic area.

The executive order is enforced by the Office of Federal Contract
Compliance Programs (OFCCP) in the U.S. Department of Labor. The OFCCP
issues numerous regulations to implement the order. Penalties for
noncompliance include publishing the names of nonconforming contractors,
recommending to the EEOC or U.S. Department of Justice that proceedings be
instituted under Title VII, canceling or suspending the contract (either
absolutely or conditionally, depending on future compliance with
affirmative action plans), or (only rarely) barring the contractor from
entering into further government contracts until the secretary of labor is
satisfied that equal opportunity/affirmative action will be realized at
the contractor's place of business.

TITLE VIl.

The Civil Rights Act of 1964 was intended to discourage discrimination on
various "suspect" bases in a variety of settings. The
suspect bases are race, color, religion, sex, or national origin. Title
II, for example, prohibits discrimination on all five suspect bases in
public accommodations (such as hotels, motels, restaurants), while Title
IX prohibits discrimination on the same bases in public education. The
essence of Title VII is to discourage employment discrimination on any of
the suspect bases.

Section 703 of Title VII makes it an unlawful employment practice:
"to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national
origin." Thus, the law covers employer discrimination in hiring,
promotion, or firing, or working conditions such as training, pay,
discipline, layoffs, and benefits. Similar provisions apply to labor
organizations (unions), and employment agencies must not classify, refer,
or fail to refer people to others on any of the suspect bases. Employers
are also forbidden to retaliate against any employee who makes a charge,
testifies, or otherwise participates in an investigation or hearing under
the act or opposes any unlawful practice.

Several exceptions were made. If an employee is a member of the Communist
Party of the United States or of any other organization considered a
"Communist-action or Communist-front organization,"
discrimination is not unlawful. Nor is discrimination on any of the
suspect bases unlawful where the job "is subject to any requirement
imposed in the interest of national security of the United States."

Other exceptions are more likely to apply. Title VII allows for
unintentional discrimination that arises from a bona fide seniority or
merit system. It also provides an exception where religion, sex, or
national origin is a bona fide occupational qualification (BFOQ)
"reasonably necessary to the normal operation of that particular
business or enterprise." Thus, a Jewish synagogue need not
seriously consider a Baptist minister for possible employment, and may
impose a religious affiliation requirement for its hiring process. But the
exception is very limited. The courts have allowed use of the BFOQ
exception when an acting part is cast as male or female. But airlines were
not successful in claiming that males would not be suitable as flight
attendants. If persons of one sex can perform the essential functions of
the job as well as persons of the other sex, the BFOQ exception will
ordinarily not justify gender discrimination.

Title VII applies to private employers with 15 or more employees, labor
unions with 15 or more members, employment agencies, state and local
governments, public and private educational institutions, and the federal
government (including, most recently, Congress itself). Title VII has been
amended several times with the Equal Employment Opportunity Act of 1972
and the Pregnancy Discrimination Act of 1978. The 1978 amendment added
pregnancy discrimination as a type of gender discrimination. The 1972
amendment widened Title VII's coverage to include government
employees and strengthened the powers of the Equal Employment Opportunity
Commission (EEOC), the agency charged with enforcement of Title VII.
Amendments in 1991, among other things, (1) allowed recovery of
compensatory and punitive damages, rather than just back pay; (2) allowed
jury trials where compensatory or punitive damages are sought; and (3)
extended Title VII's application beyond U.S. boundaries to include
U.S. citizens working for U.S. companies abroad.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

The Civil Rights Act of 1964 not only set substantive limits on workplace
discrimination but also created an administrative agency to enforce the
act. The EEOC is composed of five members, not more than three of whom may
be members of the same political party. The members are appointed by the
president with the advice and consent of the Senate; each serves a
five-year term. The EEOC has authority to set guidelines for adherence to
the Civil
Rights Act of 1964, as well as other legislation such as the Age
Discrimination in Employment Act of 1967 and the
Americans with Disabilities Act.
It has authority to hold hearings, obtain evidence, and subpoena and
examine witnesses under oath.

An aggrieved employee or the EEOC may file a civil lawsuit to complain of
discriminatory acts by an employer, labor union, or employment agency.
First, however, each must exhaust administrative efforts to settle the
claim. An employee must file a complaint to the EEOC within 540 days of
the alleged unlawful practice; the EEOC then serves notice of the charge
to the employer within ten days. The EEOC will investigate the complaint
by talking with both the employer and employee (or ex-employee). (A
claimant who remains an employee has some protection from the
antiretaliatory provisions of Title VII, which makes it a separate offense
for an employer to retaliate against any employees pursuing their rights
under Title VII.) After investigating the complaint, the EEOC may find
that there is no cause, and will issue a right to sue letter. The
claimant, having exhausted administrative remedies, must then file a
lawsuit within 90 days in federal or state court or lose the right to
pursue a Title VII action. Claimants also have a right to sue if the EEOC
does not act on the complaint within a certain time.

The EEOC may, however, find reasonable cause to charge the employer with
discrimination, and will attempt to conciliate the matter in an informal
way. Conciliated resolution of Title VII disputes may include the
employer's agreement to write a favorable letter of recommendation,
to reinstate, to promote, or to adjust the pay or working conditions. If
no conciliation is made, the EEOC may file a civil action.

Whether the EEOC brings an action or whether the claimant brings an
action, the usual remedies sought include back pay awarded for time an
employee was not working because of illegal discrimination, and front pay
for time an employee would have been in a job were it not for the illegal
discrimination. Both such remedies are aimed at making the claimant
"whole"; that is, putting the claimant in approximately the
same economic position that she or he would have been in had the illegal
discrimination not occurred.

To such damages the
Civil Rights Act of 1991
added compensatory damages and punitive damages as possible remedies.
Compensatory damages could include emotional pain, suffering,
inconvenience, mental anguish, and other nonpecuniary losses. Punitive
damages are allowed when the employer's acts are malicious or done
with reckless indifference to the employee's Title VII rights. Both
compensatory and punitive damages are capped at various levels. For an
employer with:

15 to 100 employees, there is a cap of $50,000.

101 to 200 employees, there is a cap of $100,000.

201 to 500 employees, there is a cap of $200,000.

More than 500 employees, there is a cap of $300,000.

TITLE VIl LAWSUITS.

To win a Title VII sex discrimination lawsuit, a plaintiff must show that
actions taken by the employer were based on gender. Generally, two types
of cases are distinguished: the disparate treatment allegation (in which
the plaintiff must convince the court that the employer intentionally
discriminated against the plaintiff) and the disparate impact allegation
(in which the plaintiff must show that the employer's seemingly
neutral or nondiscriminatory acts, policies, or practices had a
disproportionately negative impact on women in that particular workplace).
Sexual harassment
cases are disparate treatment cases; the essential allegation is that the
plaintiff has been treated differently by the employer (or its agents)
because of her gender.

If an employer intentionally treats minority applicants or employees
differently because of their sex, that would be disparate treatment under
guidelines established by the EEOC, the U.S. Civil Service Commission, the
U.S. Department of Labor, and the U.S. Department of Justice. These four
agencies have a common set of rules for interpreting and enforcing the
Civil Rights Act—the Uniform Guidelines on Employee Selection
Procedures. Sexual harassment is a type of disparate treatment case
because the victim would not have suffered the harassing conduct except
for her (or his) sex. In
McDonnell Douglas Corp. v. Green
in 1973, the Supreme Court established a four-step decision rule for
inferring intentional discrimination in disparate treatment cases
involving hiring decisions:

plaintiff belongs to a protected classification;

plaintiff applied for and was qualified for a job for which employer was
seeking applicants;

despite their qualifications, they were rejected; and

after their rejection, the position remained open and the employer
continued to seek applicants from persons of complainant's
qualifications.

Similar yet somewhat different proofs must be offered by plaintiffs who
are aggrieved by promotion or layoff decisions or working conditions,
where the gender of the plaintiff is alleged to be the primary cause of
the nonpromotion, layoff, or adverse working condition. Adverse working
conditions may include conditions of sexual harassment.

Sexual harassment cases are, in essence, claims of disparate treatment
under Title VII. The employee's complaint is typically based on a
perceived difference in treatment based on gender. Sexual harassment
claims are either quid pro quo or hostile working environment claims. A
quid pro quo claim alleges that the employer required favors of a sexual
nature in exchange for continued employment or in exchange for certain
working conditions. If an employer makes kissing or other bodily contact a
requirement of continued employment, a quid pro quo claim of sexual
harassment is evident. But if there is no physical contact between
employer and employee, there may still be sexual harassment under the
hostile working environment type of claim. If an employer (or those under
employer supervision or control) maintains a hostile working environment
that disparately affects an employee on a gender-specific basis, the
employer may be liable for creating a hostile working environment.

Often, a company's management is unaware of harassing behavior;
questions arise as to the company's liability in such cases. In
Meritor Savings v. Vinson
(1986), the Supreme Court determined that agency principles would apply
for establishing employer liability, and that a company would generally be
responsible for the acts of its employees as agent. Still, the court was
willing to consider that a company might not have actual knowledge of
sexually harassing behavior on the part of its employees, and that this
might operate as a defense to liability. Following
Meritor,
many courts, including the 3rd Circuit, allowed employers to escape
liability for a sexually harassing hostile work environment by taking
"prompt and effective remedial measures" once the facts
about the harassing environment were brought to its attention.

Confusion among employers and courts about "vicarious
liability" has continued until the 1997-98 term; to some extent,
the Court has clarified vicarious liability questions in two decisions,
Ellerth v. Burlington Industries
and
Farragher v. City of Boca Raton.
In
Meritor,
however, the Court cautioned that businesses cannot simply insulate
themselves from liability by making it difficult for upper management to
know about sexual harassment allegations; businesses should have some
means for aggrieved employees to make complaints of sexual harassment,
should have a clearly stated policy covering sexual harassment, and must
enable employees to bypass a harassing supervisor in order to make a
complaint.

In addition to
Ellerth
and
Farragher,
the Supreme Court has since
Meritor
considered other key sexual harassment cases, including
Harris v. Forklift Systems
and
Oncale
v.
Offshore Services, Inc.,
which determined that if harassment is directed at a male employee
because of his gender, he can maintain a "same-sex"
harassment suit.

HARRIS V. FORKLIFT SYSTEMS.

Prior to the Supreme Court's decision in
Harris v. Forklift Systems, Inc.
(1993), many federal circuit courts of appeal had used a
"reasonable woman" standard in sexual harassment cases. The
use of such a standard, in contrast to a "reasonable person"
standard, requires that the alleged sexual harassment of a woman be judged
on a gender-specific basis. That is, the particular sensibilities of women
would be acknowledged by the courts in evaluating whether the alleged
harassment was actionable under Title VII. Legal scholars and social
critics had either hailed or condemned the use of the "reasonable
woman" standard. Supporters of the standard believed it was the
only feasible way to reverse the reality that many men have been brought
up to believe that gender abuse and harassment is their birthright;
critics believed that a gender-specific standard was needlessly divisive
and would tend to elevate relatively trivial forms of workplace harassment
into a federal cases and "chill" the exercise of free speech
and normal social intercourse.

But in
Harris
v.
Forklift Systems, Inc.,
the Supreme Court laid the "reasonable woman" standard to
rest. On appeal, the plaintiff sought to undo the lower court's
requirement that she prove "psychological harm" from the
harassment. The Court, speaking through Justice Sandra Day
O'Connor, firmly rejected any such requirement in Title VII sexual
harassment cases. Without addressing the "reasonable woman"
standard directly, O'Connor's opinion clearly embraced the
"reasonable person" standard in saying that "Conduct
that is not severe or pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII's
purview."

In
Harris v. Forklift Systems,
the owner/manager allegedly made numerous sexual innuendoes about
Harris's and other women's clothing, suggested that he and
Harris "go to the Holiday Inn" to negotiate her raise, and
occasionally asked female employees (including Harris) to get coins from
his front pants pocket. At least once, Harris was called a "dumb
ass woman." The owner/manager also threw objects on
the ground in front of female employees and asked them to pick up the
objects.

In finding that no proof of psychological injury was required, the Supreme
Court tried to steer a "middle path between making actionable any
conduct that is merely offensive and requiring the conduct to cause
tangible psychological injury." But the Court disavowed any set
criteria, other than the "test" that "so long as the
environment would reasonably be perceived, and is perceived, as hostile or
abusive" there may be sexual harassment without a finding of
psychological injury. O'Connor continued:

But we can say that whether an environment is "hostile" or
"abusive" can be determined only by looking at all the
circumstances. These may include the frequency of the discriminatory
conduct; its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.… while
psychological harm, like any other relevant factor, may be taken into
account, no single factor is required.

In short,
Harris v. Forklift
put the reasonable woman standard to rest along with the notion that only
egregious cases of psychological harm would be actionable under Title VII.
But in
Harris,
the harassment came from the company's owner; thus, the case did
not answer the vicarious liability question for most companies that was
raised by
Meritor:
when is a business liable (or not) for unauthorized sexual harassment by
"lower level" supervisors? In the 1997-98 term, the Supreme
Court provided some helpful guidance on this question

FARRAGHER V. BOCA RATON AND ELLERTH V. BURLINGTON INDUSTRIES.

In essence, the Supreme Court in the
Farragher
and
Ellerth
cases clarified an employer's obligation to rid the workplace of
sexual harassment by finding employers to be "vicariously
liable" for such harassment that does not result in a
"tangible job detriment." But the Court also articulated an
affirmative defense: where the employer had and promulgated an effective
sexual harassment policy and complaint procedure, and the allegedly
harassed employee failed to take advantage of the procedures in place,
there would be no vicarious liability. If a supervisor's sexual
harassment of a subordinate leads to a tangible job detriment, these
affirmative defenses are not available and the employer will be liable for
the harassment.

In both cases, the Court noted that supervisors who sexually harass are
presumably acting outside the scope of their employment, since such
harassment does not further the aims and objectives of the employer.
Still, such harassment may be "aided" by the agency
relationship; that is, because a supervisor has authority over a harassed
employee, the supervisor may be aided by the position his employer has
conferred.

For both cases, the Supreme Court articulated a path for employers whose
agents (employees) may discriminate by sexual harassment. First, the
employer must exercise reasonable care to prevent and correct promptly any
sexually harassing behavior, and second, the plaintiff employee must have
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer to avoid harm or otherwise. This
defense is not available when the supervisor's harassment
culminates in a tangible employment action, such as discharge, demotion,
or undesirable reassignment. The court placed emphasis on an employer
maintaining and publicizing its sexual harassment complaint procedure
throughout the workplace and an employee's obligation to reasonably
utilize such procedure.

In applying these principles to the cases at hand, the court reversed the
appellate court in
Farragher,
finding that, although Farragher suffered no tangible job action, the
city of Boca Raton would not have the opportunity to raise an affirmative
defense to her claim because it "entirely failed to disseminate its
policy against sexual harassment among the beach employees."
Conversely, in
Ellerth,
the court affirmed the appellate court's reversal of summary
judgment in favor of Burlington, but permitted the employer (a) the
opportunity to assert and prove the affirmative defense that it
promulgated and maintained its sexual harassment policy and (b) that
Ellerth unreasonably failed to utilize the procedures set forth.

The cases leave unsettled the question of whether the employer's
failure to prevent harassment is actionable in itself. Employers
implementing these decisions should review their sexual harassment
policies and procedures for their strength and ease of use. As the court
in
Ellerth
noted, "Title VII is designed to encourage the creation of
anti-harassment policies and effective grievance mechanisms."

True to the dictates of judicial conservatism, the Court has avoided
deciding cases not before it; the tradition of case-by-case analysis by
"looking at all the circumstances" is invoked, leaving
managers and organizations with scant guidance. Given that under the Civil
Rights Act of 1991, Title VII cases can now take place before juries
empowered to award punitive damages, a certain confused caution may be the
order of the day for business organizations. Lacking more specific
guidance, businesses are likely to err on the side of protecting all
sensibilities, however fragile or idiosyncratic. A prudent set of policies
would include a systematic yet unintrusive survey of employee attitudes
about what kinds of speech and behaviors are perceived and harassing and
which are not.

Disparate impact cases are somewhat different from disparate treatment:
showing an intent to discriminate is not a necessary part of plaintiff s
burden of proof. In effect, an employer may have a policy or practice
that, on its face, is seemingly neutral as to gender. In practice,
however, the policy may systematically disadvantage applicants or
employees of a particular sex.

In the leading case on disparate treatment,
Duke Power Co.
v.
Griggs,
the Supreme Court found that the company's policy of requiring a
high school diploma or passing a high school achievement test was
seemingly neutral, yet disproportionately affected African-American
employees and applicants. Plaintiffs prevailed even though there was no
showing of an intent to discriminate. In sex discrimination cases, certain
policies that, for example, require employees to be able to lift 80 pounds
deadweight from a standing position would be facially neutral, yet may
disproportionately affect the chances women might have to gain employment.
Yet the facially neutral requirement may be reasonable, in which case the
courts will allow a defense of business necessity. Business necessity as a
defense in disparate impact cases requires that the employer show (1) that
qualities measured by the test or requirement are, in good faith,
reasonably necessary to an adequate performance at the job in question;
and (2) that any test actually examines what it purports to examine, is
valid, and measures accurately what it purports to measure. The EEOC
specifies three forms of test validation under its 1978 Uniform Guidelines
on Employee Selection Procedures.

Yet there are many policies and practices that may have a disparate impact
that are not as clearly defined as a test or requirement. Candidates for
midlevel and upper-level management are usually not evaluated by tests or
specific requirements; they are typically chosen by rather more subjective
methods. Such methods are difficult for disadvantaged employees to pin
down, yet the courts require that a specific practice or policy that is
the cause of the disproportionate impact must be identified. Statistical
evidence alone—even where the
workforce
is nowhere near representing the racial and gender mix of eligible and
available employees—will generally not suffice to establish
disparate impact. More is required: the identification of a specific
policy, practice, or procedure which disadvantages the complainant(s).
Moreover, that practice or policy must be causally related to the impact
shown.

In disparate treatment cases, the issues of affirmative action and reverse
discrimination may arise. A company that has intentionally and
systematically excluded people of one sex from its workplace may find
itself sued under Title VII and ordered to institute an affirmative action
plan under court supervision. A company that is fearful of litigation over
its personnel practices may decide to have a voluntary affirmative action
program designed to increase the representation of previously excluded
minorities, including women (or men). Voluntary affirmative action plans
have been challenged in court as a kind of reverse discrimination: a male
who is passed over for promotion in favor of a female may claim disparate
treatment, and the court must determine whether the voluntary affirmative
action plan is valid. The Supreme Court will generally allow an
affirmative action plan in any case where the plan (1) is temporary,
designed to attain rather than permanently maintain some balance in the
workforce; (2) does not impose rigid quotas setting aside a certain number
of positions for women; (3) does not bar affected males, in the long term,
from further advancement; and (4) has the purpose of correcting manifest,
long-standing imbalances in the employer's workforce.

Affirmative action has been controversial in contexts of both race and
gender. Any forced changes in the status quo are likely to produce some
backlash; moreover, many people object to using some form of
discrimination to end discrimination, and many others are not convinced of
the long-term utility of affirmative action for women or people of color.
Title VII specifically allows affirmative action, but there are likely to
be some new limits placed on its use by Congress.

The majority of states also have laws prohibiting discrimination by
employers on the basis of race, sex, or religion, as well as
discrimination on a variety of other grounds. Michigan's
Elliott-Larsen Act, for example, prohibits discrimination on the grounds
of obesity if the employee is otherwise capable of performing his or her
assigned tasks. Such state laws are not preempted by federal law in Title
VII, since Congress neither stated nor implied that states could not also
regulate on the subject of job discrimination. Thus, some state laws on
equal opportunity could provide different or even more generous remedies
to affected employees, and could protect classes of employees not
otherwise protected by Title VII. But some state supreme courts have
refused to award punitive damages for violations of state civil rights
laws, stressing the remedial nature of such laws. Under the
Pennsylvania Human Relations Act, for example, punitive damages may not
be allowed
(Hoy v. Angelone, Pa.,
24 November 1998). As a result, attorneys for plaintiffs alleging sex
discrimination are likely to seek remedies under federal law.

A potential claimant may thus pursue both federal and state remedies.
Typically, states have their own agencies to administer and enforce
nondiscrimination laws. Under Section 706 of the Civil Rights Act of 1964,
state agencies may contract with the EEOC to be a "706
agency" and process claims of discrimination for the EEOC in
addition to state-based claims. If a claimant comes to the EEOC when there
is a 706 agency in the jurisdiction, EEOC must defer to that agency for 60
days before beginning its investigation.

In filing suit, Title VII claimants with right-to-sue letters typically
resort to federal district courts within the applicable time limits. If a
plaintiff has a state claim as well, the state claim will be heard as part
of the federal courts' pendant jurisdiction. But a state court may
hear a Title VII claim unaccompanied by a state claim, since state courts
have concurrent jurisdiction of all types of claims unless exclusive
jurisdiction resides with the federal courts. In passing Title VII,
Congress empowered federal courts to hear complaints of job discrimination
based on race, color, sex, religion, and national origin, but did not
limit the available post-EEOC dispute resolution forums to the federal
courts. Thus, state courts and arbitral forums are also available for the
resolution of Title VII claims.

In Section 118 of the Civil Rights Act of 1991, Congress encouraged the
use of alternative dispute resolution mechanisms to settle claims of job
discrimination. Earlier that year, the Supreme Court had interpreted the
Federal Arbitration Act to require an employee to arbitrate an age
discrimination claim even though he preferred to litigate in federal court
(Gilmer v. Interstate/Johnson-Lane).
In one of many documents signed as part of his application for
employment, Gilmer had unknowingly agreed to
arbitration
of any disputes arising between him and his employer. After the alleged
discrimination, resulting in his discharge, Gilmer sued but was compelled
to arbitrate his age discrimination claim instead of having it heard by
the federal court. Since the Gilmer case was decided, federal courts have
overwhelmingly enforced predispute arbitration agreements where sex
discrimination or other Title VII causes of action are alleged.

A few federal circuit courts of appeal have been reluctant to enforce
predispute arbitration clauses where unfairness might result. In
Prudential Ins. Co. of America v. Lai and Viernes et al.
(1994), the Ninth Circuit Court of Appeals determined not to enforce a
predispute arbitration clause where the plaintiffs had no opportunity to
read the forms they signed, where they were told they were applying to
take a test, and where arbitration was never mentioned. Until the Supreme
Court addresses these issues, prudent employers desiring arbitration of
sex discrimination claims are well advised to make full disclosure of any
predispute arbitration agreements.

Courts are also grappling with the extent to which arbitrators may award
punitive damages. Predispute arbitration agreements, particularly in the
securities
industry, choose New York state law as the basis for interpreting the
agreement. Under New York law, however, public policy prevents arbitrators
from awarding punitive damages. In 1995 the Supreme Court decided
Mastrobuonno v. Shearson Lehman
and directed courts to allow arbitrators to award punitive damages unless
the parties had clearly agreed that the arbitrator had no power to do so.

In the 1991 amendments to Title VII, Congress also made clear that the law
applies outside U.S. boundaries, but only where the claimant is a U.S.
citizen and the employer is a U.S. company. Earlier that year, the Supreme
Court had held that the Title VII claim of a U.S. citizen should be
dismissed where the discriminatory actions by a company incorporated in
the United States had taken place in Saudi Arabia
(EEOC
v.
Boureslan).
Under
international law,
nations have the power to prescribe and enforce laws beyond their borders
with respect to acts by their citizens (nationals). Where a U.S. company
is subject to laws in a host country that would prevent the hiring of
women for certain jobs, the bona fide occupational qualification (BFOQ)
exception would resolve the conflict between Title VII and the host
country's law in favor of the host country. In one case, a U.S.
citizen tried to use Title VII to recover damages because he had not been
employed to fly planes to Mecca. But the plaintiff was a Baptist, and
Saudi Arabian law required that anyone in Mecca must be Islamic. The
defendant U.S. company had imposed the same requirement, and the Court
held that its requirement was a BFOQ
(Kern
v.
Dynalectron).
The more difficult cases will arise when the U.S.-based company
encounters cultural norms hostile to gender equality.

Cross-cultural differences have also come into play when foreign companies
operating in the United States have claimed the protection of certain
bilateral treaty provisions. Such treaty provisions, often negotiated in
treaties of friendship, navigation, and commerce, provide that companies
of the foreign nation
may select personnel of their own choosing. This raises issues for courts
that may be reluctant to impose Title VII's gender
nondiscrimination requirements on, for example, Japanese companies doing
business in the United States.